Scottish Court of Session Decisions

This was an action brought in the Sheriff Court at Perth at the instance of the Perth General Station Committee, incorporated under and in virtue of The Perth General Station Act 1865, and as such proprietors of the Perth General Railway Station, against Alexander Ross, hotelkeeper, Royal British Hotel, Leonard Street, Perth, and Charles Julius, boots at the said hotel.

The pursuers prayed the Court “to interdict the defender Alexander Ross, himself, or by his boots or other servant, or any others in his employment or acting for him, or for whom he is responsible, and the defender Charles Julius, from unlawfully entering or trespassing upon any of the railways, stations, or other works or premises of the pursuers, and in particular from so entering or trespassing in or upon the Perth General Railway Station, or other works or premises therewith connected, while wearing the uniform or badge of the defender Alexander Ross or of the said Royal British Hotel, and from waiting the arrival of passenger trains therein for the purpose of obtaining customers for said hotel.”

The defender Julius failed to enter appearance, and decree in absence was pronounced against him on 19th November 1895.

The following were the material facts in the case—On several occasions in the month of July 1895 the defender Ross sent his servants into Perth Station while wearing the uniform or badge of his hotel, but they did not enter the station except for the purpose of accompanying passengers who were leaving his hotel, or of meeting passengers who had intimated that they were to arrive at his hotel, and neither the defender nor his servants caused any obstruction or inconvenience at the station. The pursuers had for a long time always objected to the servants

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of hotelkeepers in Perth coming into the station to await the arrival of trains dressed in any distinctive uniform or wearing any special badge or cap. The station officials had always regarded it as a rule, in the management of the station, that such action on the part of hotel servants was not to be allowed, and the station police had orders accordingly, but there was no byelaw duly made and sanctioned by the Board of Trade to that effect. The defender, in spite of repeated warnings, even after his boots had been ejected from the station by the station police, persisted in sending his boots to the station with a distinctive cap and badge, and claimed right to do so. The pursuers were themselves the proprietors of the Station Hotel, Perth, and they allowed the servants of that hotel on to the platforms to await the arrival of trains, and these servants were allowed to wear a distinctive uniform. The wearing of a distinctive badge was found to be a convenience to travellers who proposed to stay at a particular hotel, because it enabled them to recognise the boots whose services they wanted, and to entrust their luggage to him for conveyance to the hotel. On the other hand, if no cap was worn, it was found that a passenger who intended to come to a particular hotel was not able to find the boots, and was sometimes taken to another hotel, or went to the Station Hotel, whose servants were easily recognised from their uniform. This it was claimed by the defender was an unfair advantage to the station hotel.

The pursuers pleaded, inter alia—“The defenders having trespassed upon the said Perth General Railway Station, the property of the pursuers, and declined to desist, the pursuers are entitled to have such trespassers interdicted by the Court.”

The defenders pleaded, inter alia—“(3) The defender Ross never having either by himself or his servants trespassed on the Perth General Station, and having no intention to trespass thereon, the pursuers are not entitled to interdict. (4) The pursuers having by statute immediate recourse against the defenders in the event of their wilfully trespassing on the Perth General Station, the present proceedings are unnecessary and oppressive, and the petition should therefore be dismissed with expenses. (5) The object of the petition being an attempt to restrict the liberty of the defender Ross or his servants in the matter of wearing a uniform or badge is illegal, and the pursuers are not entitled to interdict.”

The Act 3 and 4 Vict. cap. 97 (for regulating railways) enacts, section 16—“If any person shall wilfully trespass upon any railway, or any of the stations or other works or premises connected therewith, and shall refuse to quit the same upon request to him made by any officer or agent of the said company, every such person so offending, and all others aiding or assisting therein, shall and may be seized and detained by any such officer or agent, or any person whom he may call to his assistance, until such offender or offenders can he conveniently taken before some justice of the peace for the county or place wherein such offence shall be committed, and when convicted before such justice as aforesaid, shall be liable in a penalty of £5 or two months' imprisonment.”

The Railway and Canal Traffic Act 1854 (17 and 18 Vict. cap. 31), section 2, enacts—“Every railway company … shall according to their respective powers afford all reasonable facilities for the receiving and forwarding and delivering of traffic upon and from the several railways … belonging to or worked by such companies respectively, and for the return of carriages, trucks, boats, and other vehicles, and no such company shall make or give any undue or unreasonable preference or advantage to or in favour of any particular person or company, or any particular description of traffic, in any respect whatsoever, nor shall any such company subject any particular person or company, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.”

By section 1 of the same Act “traffic” is defined to include “passengers and their luggage.” By section 3 it is declared lawful for persons complaining of anything done or omitted to be done contrary to the Act “to apply in a summary way by motion or summons … in Scotland to the Court of Session … or to any Judge thereof, and for the Court by interdict to restrain the contravening company from continuing the contravention, and to enjoin obedience to the Act.”

The Regulation of Railways Act 1873 (36 and 37 Vict. cap. 48), section 6, transfers the jurisdiction conferred by section 3 of the Railway and Canal Traffic Act 1854 to the Railway Commissioners, and declares “that they may make orders of like nature with the writs and orders authorised to be issued and made by the said courts and judges, and the said courts and judges shall, except for the purpose of enforcing any decision or order of the Commissioners, cease to exercise the jurisdiction conferred on them by that section.”

The Sheriff-Substitute ( Grahame) on 1st August 1895 granted interim interdict. He subsequently allowed a proof, and thereafter on 13th February 1896 he issued an interlocutor, in which, after sundry findings, he recalled the interim interdict and refused the prayer of the petition, adding the following note:—

Note—“This is an action in which the pursuers, the Perth General Station Committee, who are a body corporate under the Perth General Station Act 1865, and Acts incorporated therewith, founding upon the rights and powers thereby conferred upon them, are seeking to obtain interdict against the defender Alexander Ross, hotel-keeper, Royal British Hotel, Perth, or his servant acting under his instructions, and the defender Charles Julius, the boots at said hotel, from unlawfully entering or trespassing upon pursuers' said station or premises connected therewith, while wearing the uniform or badge of the defender

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Ross, or of the said Royal British Hotel, and from awaiting the arrival of passenger trains therein for the purpose of obtaining customers for the said hotel. The pursuers allege in their condescendence that the defender Julius, acting on the order of his master, the defender Ross, and while wearing his hotel livery or badge, and for the purpose of obtaining customers to the hotel, wilfully and unlawfully trespassed on the said Perth General Railway Station, and in terms of the amended and restricted prayer of the petition, an interim interdict, which is now sought to be recalled, was on 1st August 1895 granted against both defenders, and as regarded the defender Julius, who failed to enter appearance and was held confessed, was declared on 19th November last, which was the date of closing the record, to be perpetual. Of the same date a proof was allowed to the pursuers and the defender Ross of their respective averments, and that proof having accordingly been taken, the question to be determined now is whether or not pursuers are entitled to have the interim interdict declared perpetual against the defender Ross, or whether he is entitled to have it recalled. At the hearing of parties on this question, and before considering the question on its merits as disclosed in the evidence, the defender Ross for the first time took exception to the competency of the action as brought into Court, and urged a plea which had not been stated on record, to the effect that in respect the present action was, in terms of the fifth article of pursuers' condescendence, founded on the statute 3 and 4 Victoria, cap. 97, sect. 16, the remedy therein provided against a breach of that statute was the only remedy competent, and that the pursuers not having sought the remedy thus provided, but craved interdict at common law, it must be held that the action is irrelevantly laid, and falls to be dismissed as incompetent. This plea is one which ought to have been stated and disposed of previous to the granting of the interim interdict and the allowance of proof, and in the interlocutor now pronounced I have accordingly given no formal finding in regard to it, but dealt with the case on its merits. At the same time, however, it is right that I should say that the plea in question is one which, even if more timeously urged, I could not have sustained. In the first place, and as regards the objection taken by the defender Ross, that what the pursuers found on is a statutory offence for which a statutory penalty is the proper remedy, I observe that though reference is made in the pursuers' condescendence, article 5, to the defenders' conduct as being a breach of the 16th section of 3 and 4 Vict. cap. 97, still the pursuers do not in their petition found on the statute as being their authority for the action they have raised, but proceed generally upon their right as being, in terms of the Perth General Station Act 1865, and Acts incorporated therewith, proprietors of that station, and as being in right of such proprietorship entitled to protection against the alleged trespasses of the defender on their property, the defender not being entitled under said Acts to any such privileges as he now claims to exercise, and against the exercise of which, as being an unlawful trespass on the pursuers' property, the present action of interdict has been raised. The pursuers' right of proprietorship in the Perth General Station under said Act may, no doubt, be held to be of a qualified character, and can therefore be maintained and used only subject to that use being consistent with the objects in respect of which the pursuers as railway carriers obtained compulsory powers of acquiring its possession. But what they here allege is, not that they possess any special statutory right to insist in obtaining the interdict against the conduct of the defenders in respect of its being a statutory offence, but that their right to pursue the present action is inherent in their right of proprietorship of said station, and that that right not having been conditioned by any qualifying restriction of their ordinary right of proprietorship sufficient to authorise the defender's actings, the process of interdict at common law is competent. The position of the pursuers in regard to this point seems to me to be a sound one, and reference may be made to the leading case of Cooper v. Whittingham, 15 Ch D 501, in which, though it was an action for injunction founded professedly and directly on a section of the statute which created a new offence and enacted a particular penalty, it was held that ‘while, as a general law, where a new offence and a penalty for it had been created by statute, a person proceeding under the statute was confined to the recovery of the penalty, and nothing else could be asked for, there was an exception in the case of the ancillary remedy in equity by injunction to protect a right, that being a mode of preventing that being done which, if done, is an offence. Wherever an act is illegal and is threatened, the Court will interfere to prevent the act being done. And as regards the mode of granting an injunction, the Court will grant it even when the illegal act is threatened but has not been actually done, or when it has been done and seemingly is intended to be repeated.’ On this ground I therefore am of opinion that the defender's plea of incompetency could not have been sustained, and the question therefore remaining to be considered is, whether or not the pursuers, as proprietors of the Perth General Station, have, as proceeding at common law, established such illegal trespassing on their property by the defender Ross, or those acting under his instructions, as to justify their present crave for interdict.

Before, however, dealing directly with the question of the defender's alleged trespass as determined by the evidence, it is proper to refer to the argument urged on the defender's behalf at the debate, to the effect that under the provisions of the Railway and Canal Traffic Act 1854 (17 and 18 Vict. cap. 31), in regard to the granting of undue preferences or causing undue prejudice, the pursuers were excluded from

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complaining of the defender's alleged actings, and that in seeking to prevent access by him or his servants to the station while wearing his hotel uniform or badge, and from waiting the arrival of passenger trains for the purpose of obtaining customers for said hotel while free admission for the same purpose was granted to the servants of the Station Hotel, they were thereby causing undue prejudice to the defender Ross, and were at the same time giving an undue and unreasonable preference to their said hotel, and that their complaint against the defenders and their prayer for interdict could not be sustained. To this pleading I am unable to give effect. By the Regulation of Railways Act 1873 the power of dealing with the question of undue preference under the provisions of the Railway and Canal Traffic Act is now vested exclusively in the Railway Commissioners; and it has been decided, that not only as in the case of Murray v. The Glasgow and South-Western Railway Company, 11 R. 205, Nov. 1883, where it was held that an action, founded on the Railway and Canal Traffic Act, for overcharges was only competent before the Railway Commissioners, but further, that, as was held in the English Case of Rhymner Railway Company v. Rhymner Coal Company, L.R., 25 Q.B.D. 146, and Lancashire and Yorkshire Railway Company v. Greenwood, L. R., 21 Q.B.D. 215, undue preference (which in the Rhymner case was held to be established) cannot be pled as a set-off to another action. The question, therefore, whether or not undue preference to the pursuer or undue prejudice to the defender Ross has been established, under the Railway and Canal Traffic Act, does not fall now to be considered, and the sole point of issue is, as already stated, whether or not the pursuers, as proprietors of the Perth General Station, are at common law, and apart from the statutory provisions of the Railway and Canal Traffic Act, entitled to obtain interdict against the defender Ross on the ground of his having, by himself or his servants, while wearing the uniform or badge of his hotel, illegally trespassed on the pursuer's property, and that he is threatening to continue to do so. In considering this it must be kept in view that an alleged trespass on a railway station is not the same as the case of an alleged ordinary trespass upon private property which has been acquired and is possessed under the ordinary conditions and for the ordinary purposes of proprietorship, and it is right in dealing with the present case that this should be kept in view. The Perth Railway Station was acquired by the pursuers compulsorily and for railway purposes, and they cannot be held entitled to exercise the powers of proprietorship thus obtained in a manner inconsistent with the purposes for which a power of compulsory purchase was given to them. The public, and especially the railway-travelling public, are entitled to require that their enjoyment of the travelling facilities in respect of affording which the pursuers compulsorily acquired the property of the Perth Railway Station should not be interfered with; and in this connection it is worthy of remark that in the Perth Station Hotel Act 1865 the convenience of the railway-travelling public is set forth as a ground on which the building of said hotel should be authorised, and the granting of the statutory authority to erect said hotel may be taken as affording a presumption as well as an illustration of the reasonableness of holding that any unnecessary interference with the convenience of the travelling public in obtaining such hotel accommodation as may be required by them for railway travelling, in connection with either the departure from or arrival by train at the Perth Railway Station, is not warranted in respect of the pursuers' right of proprietorship of said station.

If the interdict which the pursuers here crave, will have the effect of causing such interference, and as I think the evidence shows that it will, I am of opinion it cannot be granted. Under the present arrangement, which excludes from the pursuers' said station on the arrival and departure of trains any hotel-keeper or his servants while wearing a badge and waiting for customers, except those belonging to the Station Hotel, inconvenience must, I think, be caused to a certain portion of the travelling public, who are thus unable, in consequence of this prohibition, to recognise the boots or servant of the hotel at which they intend to stay, and to whom they might apply for information, or give such instructions in regard to their luggage, or other matters bearing upon their convenience and comfort as they might think right. Such a prohibition as this is, I think, beyond the right of the pursuers to make, and appears to me to be unnecessary, for though no doubt the unrestricted presence of hotel servants in uniform, and seeking or touting for customers at the arrival of trains, would probably lead to confusion and interference not only with the orderly conduct of the railway station business but with the comfort of the railway travellers themselves, the absolute prohibition which the pursuers seek is unnecessary, and whether or not it is their right to enforce this absolute prohibition is the question here at issue, and I am of opinion that it is not. The pursuers have, under the Railway Station Act, power to make such regulations or bye-laws as they may judge necessary for the regulation and control of the station, but they have not done so, and have insisted in the enforcing of their alleged right of absolute exclusion. It has not been shown that the making of such regulations would be ineffectual to prevent the evil referred to, and looking to what is proved to have been done in other stations, the presumption is that such regulations could be made by the pursuers for the admission of hotel-keepers or servants, even while wearing the badge, to the railway station without any injurious. interference with its proper management and the convenience of the travelling public. The result which in the whole circumstances I have arrived at is that while pursuers

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would be quite within their right in requiring that the presence of hotel-keepers or their servants, while wearing the uniform or badge in the station, should be only allowed under such regulations as might be necessary for the proper conducting of the station business and the convenience of the travelling public, the absolute exclusion which is asked for in the present action is beyond what the pursuers are entitled to require, and that therefore the defender Boss has not unlawfully trespassed on said station, and the interim interdict which has been granted against him ought to be recalled and the prayer of the petition refused.”

The pursuers appealed to the Sheriff ( Jameson), who, by interlocutor dated 17th April, adhered, adding the following note:—

Note.— “As is well set forth by the Sheriff-Substitute in his note, this case has nothing to do with the Railway and Canal Traffic Act, nor is it incompetent on the ground that the present action was, as set forth in the fifth article of the pursuers' condescendence, founded to some extent on the Statute 3 and 4 Vict. cap. 67, sec. 16, and that an action for interdict is not the remedy prescribed by said section. This action is purely an application for interdict at common law. Such applications must be very precise as to the acts against which they crave interdict, and it must be clear that the acts which are sought to be interdicted are wrongous. As was said by one of the Judges in the case of Winans v. Macrae, 12 R. 1051—‘Interdicts are granted by courts of law when appreciable wrong to a man, whether in his property or other rights, is threatened and in the case of Hay's Trustees v. Young, 4 R. 398, it was said that ‘interdict is a remedy either against a wrong in course of being done, or against an apprehended violation of a party's right, only to be awarded on evidence of the wrong, or on reasonable grounds of apprehension that such violation is intended.’ Now, what is the wrong alleged here. It is said generally that the wrong was a trespass upon the private property of the Station Committee; that the station being the private property of the Committee, they are entitled to admit whom they please, and exclude whom they please, subject only to this, that they are not entitled to exclude persons who have travelled or intend to travel by their railways, or who come to receive or send away goods that have been carried or are to be carried by such railways, and that accordingly any other person whom they prohibit to come there is a trespasser if he does come there after such prohibition. I cannot accept this as a correct statement of the pursuers' rights. I think that persons having lawful business in connection with any members of the public travelling by railway are prima facie entitled to access to the station in pursuit of such business. In particular, I think that if a traveller by railway writes to his own servant, or to the servant of the hotel where he intends to reside, to meet him at the station and assist him with his luggage, such servant cannot be deemed to be versans in illicito in entering the railway station for the purpose of meeting such traveller. It is, however, manifest that the presence of indefinite numbers of such persons might obstruct the railway officials in their duty, especially if they began interfering with passengers' luggage before it was out of the hands of the station servants. Accordingly, every railway company and the present pursuers have power, subject to the sanction of the Board of Trade, to make bye-laws and regulations for the management of their stations, and if these are broken they may be entitled to interdict against such breach. But no such regulations were made in the present case. Apart from such regulations, if it were proved that any particular hotel boots was in the habit of annoying passengers by touting, or of obstructing the station servants in their duty, a good case for interdict might be established against him. But no such case has been proved here, while on the other hand it has been proved that as a rule, at all events, the boots of the defenders' hotel only went to the station to meet customers who had written that they intended to arrive by specified trains. But the groundlessness of the present application for interdict is, I think, most clearly shown by this, that according to the railway officials, and specially the railway constables, who in this matter are entirely corroborated by the witnesses for the defence, the whole gravamen of the offence complained of as having been perpetrated by the boots, was that he appeared in the station in uniform, or with a hotel badge on his cap. This appears clearly from the evidence of William Donald, station constable, on the one hand, and of Charles Julius on the other. But that this is so is apparent all through the proof, and the prayer for interdict as amended only craves interdict, ‘in particular against the defenders entering the station while wearing the uniform or badge of the defender Alexander Ross or of the Royal British Hotel.’ I must say that it appears to me to be out of the question to hold that at common law the Station Committee are entitled to an interdict against anyone wearing what clothes he pleases in their station, unless they are of such a description as to be against decency or likely to cause a breach of the peace. Besides this, it is proved that some distinctive dress or badge is needed to enable travellers to recognise the particular boots whose services they desire to obtain, and I should think it a protection alike to the public and the Station Committee that such badges should be worn. With regard to the first part of the prayer for interdict, I think it is far too general in its terms to be granted, even were there grounds for an interdict at all, which I think there are not. On the whole matter I am of opinion that no case for an interdict at common law has been made out, in respect that no wrong has been proved, and that if it should turn out that the influx of hotel boots into the station is likely to become

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a source of inconvenience to the public and the railway officials, the proper remedy of the pursuers is to frame appropriate byelaws for the regulation of hotel servants awaiting trains at the station which would be applicable to all hotels alike.”

The pursuers appealed to the Court of Session, and argued—A railway station was private property, subject to a right of entry in persons coming on railway business— Case v. Storey, May 31, 1869, L.R., 4 Ex. 319, per Kelly, C.-B., at page 323. As regards passenger traffic, railway business was confined to arriving and departing by train— Case v. Storey, loc. cit.—and all other persons, except railway servants, were trespassers. Hotel porters coming with passengers or to meet them were not in the station on railway business. Neither were relatives or friends of passengers or private servants. The presence of all such persons was unnecessary, as porters were provided by the company, and they might be lawfully excluded or admitted by the company as they chose, or admitted subject to such conditions as they chose. They were therefore entitled to prevent persons entering the station wearing any cap or badge to which they might object. In stations none but passengers were admitted to the platforms. No bye-law sanctioned by the Board of Trade was necessary to effect this. Such sanction was only required to enable a penalty to be imposed. The fact that a penalty for trespass was allowed to be exacted under section 16 of the Railways Act 1840 did not deprive the Station Committee of the right to vindicate their rights by interdict— Cooper v. Whittinghame, June 4, 1880, 15 Ch D 501. In this view the absence of inconvenience founded on by the Sheriff-Substitute was irrelevant, as the owner of property was always entitled to interdict a trespasser whether causing him inconvenience or not. From the case of Beadell v. The Eastern Counties Railway Company, June 1, 1857, 1 N. & M'N. 56, and 2 C.B., N.S. 509, it appeared that apart from the provisions of the Railways and Canal Traffic Act 1854 a railway company could exclude anyone it chose from a station except passengers. The provisions of that Act could not avail the defender here, as this Court had now no jurisdiction to consider questions under that Act, which were reserved for the exclusive adjudication of the Railway Commissioners—Regulation of Railways Act 1873, section 6—and consequently a breach of section 2 of the 1854 Act could not be pleaded as a defence to an action of interdict. Moreover, the provisions of that section were intended to protect the interests of the public and not those of the individual trader. The trader was therefore not entitled to found upon these enactments, which were jus tertii for him, with the result of compelling the Station Committee to give him facilities for carrying on his business in their premises—see Marriott v. London & South-Western Railway Company, January 30, 1857, 1 N. & M'N. 47, and 1 C.B., N.S. 499, and Beadell, cit. In these cases the ruling consideration was the interest of the public, not that of the trader. In any event, if the defender desired to found upon section 2, he must do so in an application to the Railway Commissioners. All the cases in the English Courts quoted for the defender in which questions of facilities and undue preference were considered in applications for injunction were decided prior to the Act of 1873, except Hall & Company v. The London, Brighton, & South Coast Railway Company, June 30, 1885, 15 Q.B.D. 505, which was a special case stated for the opinion of the Court by the Railway Commissioners. The cases of Winans v. Macrae, June 3, 1885, 12 R. 1051, and The Institute of Patent Agents v. Lockwood, January 26, 1893, 20 R. 315, and June 11, 1894, 21 R. (H. of L.) 61, were not in point. In the former there was no intention to invade private property, and no assertion of a right to do so, and in the latter there was no invasion of property at all. As to the argument that the interdict would be useless if it would necessarily be displaced by an order of the Commissioners, the Station Committee were willing to take their chance of what that tribunal might see fit to do in the matter. Briefly there were two questions in this case—(1) Was the defender entitled as of right to send his servants into the station? and (2) If not, then were the pursuers entitled to the remedy of interdict in order to prevent him? Both these questions ought to be answered favourably to the pursuers, and they were consequently entitled to the decree craved.

Argued for the defender and respondent—The interdict craved here ought not to be granted. The first part of the prayer was too general in its terms. The second part (the only part which was pressed and desired by the pursuers, who did not seriously object to hotel porters coming into the station unless when wearing a distinguishing dress of some kind) craved interdict against the wearing of a particular uniform or badge. That was not a wrong; interdict therefore ought not to be granted, for where there was no wrong done or threatened the Court would not grant interdict— Winans v. Macrae, cit. As to the third part of the prayer, touting was negatived by the proof. Moreover, interdict was not the proper remedy here. The proper course for the Committee was to apply to the Board of Trade to sanction a byelaw with a suitable penalty. That being so, they were not entitled to interdict—see Institute of Patent Agents v. Lockwood, cit., per Lord Young, 20 R., at page 332, and Lord Herschell, L.C., 21 R. (H. of L.) at page 68. The general question was not raised here, because the Committee were prepared to allow private individuals into the station, and even hotel porters if not wearing distinctive uniforms or badges. This showed that their sole object was to obtain an illegal preference for their own hotel. On the general question there was no analogy between a railway station and the private property of an individual. The railway company were empowered to acquire and hold land subject to its being

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used for the convenience of the travelling public. The case of Case v. Storey, cit., was not an authority for the pursuers' contention, as it only decided that a station was not in the same position as a public street, a proposition which the defender was not concerned to dispute. In any view, it was conceded that the pursuers were bound to admit persons coming on railway business— Case v. Storey, loc. cit. “Railway business” covered any lawful purpose connected with traffic, and the hotel porters, acting as the defender's servants did, come under that definition. In cases where none but passengers were admitted to platforms the exclusion was partial and not from the whole station; it was justified by special circumstances, and it was in virtue of a bye-law. The attendance of hotel porters at the station wearing the badge of their hotel was a convenience to travellers. That was the primary consideration, and had always been held so in all the cases— Beadell, cit., Harriot, cit., Hall & Company, cit.; in re Palmer and London, Brighton, and South Coast Railway Company, February 20, 1871, L.R., 6 C.P. 194. In the last-mentioned case an injunction was granted against a railway company admitting their own vans within the gates of a station after it was closed to other carriers, on the ground that this was an undue preference. That case was directly in point here. The interdict craved would have the result, and was craved solely with the view of enabling the Committee to give an undue preference to their own hotel. That being so, they ought not to obtain an interdict. It was no doubt now the case that redress against an undue preference must be sought from the Commissioners, but if a railway company sought interdict as here, the defender was entitled to found on the 1854 Act in defence. This was entirely different from founding on it in support of a counter-claim, and therefore the cases quoted by the Sheriff-Substitute were not in point. Courts were in use to consider questions when incidentally raised in a case, or founded on in defence, which they would not have had jurisdiction to entertain originally. Indeed, this Court is not entitled to ignore a public general statute like the Railway and Canal Traffic Act 1854. Although this Court could not prohibit the Joint-Committee from giving an undue preference, they could refuse to grant an interdict which would have the effect of enabling the Committee to do so. Granting or refusing interdict was always a matter for the discretion of the Court, and the Court in exercising that discretion were entitled to give weight to the fact that by granting an interdict they would be enabling the Committee to give an undue preference. If this were not so, however, the interdict ought not to be granted, on the ground that it would be merely vexatious and useless, in respect that it would be at once recalled on application to the Commissioners as conferring an undue preference.

At advising—